Thursday 4 May 2017

Whether court can rely on dying declaration which does not bear endorsement of scribe?

 The   Dying   Declaration,   which   is   treated   as   First
Information Report is scribed by Purushottam Waghmare (PW 7).
He   gave   request   letter   to   doctor   at   Government   Hospital,
Bhandara   to  examine   the   patient   and   to   give   certificate   as   to
whether she is in a fit condition.     The said letter is at Exh.41.
According to Scribe Purushottam Waghmare, doctor has examined
and put his endorsement on Exh.41 itself that “fit for statement”.
However, the doctor who has examined patient Kavita and who
has   given   aforesaid   endorsement   is   not   examined   by   the

prosecution.
Even   during   the   substantive   evidence,   Purushottam
Waghmare did not state that he himself was satisfied about the
fitness of Kavita.     It is not necessary that for recording Dying
Declaration by the Scribe there should be a Medical Certificate.
However, in such case the person who takes down the statement
of the declarent must himself be satisfied that the patient is in a
condition to  give his or her  statement.     In the  present  case,
neither   Exh.42   shows   the   endorsement   by   Purushottam
Waghmare, a Scribe, that he himself was satisfied about the fitness
of   Kavita   regarding   giving   her   statement   nor   during   his
substantive evidence he has stated so.   In that view of the matter,
the Court cannot rely  on the said Dying Declaration since there is
nothing available on record about the fact that the Kavita was in a
fit condition to give her statement.
The perusal of the Dying Declaration shows that the said
Dying Declaration is absent in respect of the endorsement made by
the Scribe that after recording the Dying Declaration it was read

over   to   the   declarent/Kavita   and   she   admits   it   to   be   true.
Therefore, the said Dying Declaration cannot be relied upon and
cannot be made basis for conviction of the accused persons in view
of the authoritative pronouncement of the Hon'ble Apex Court in
the case of Shaikh Bakshu ..vs.. State of Maharashtra, cited supra.
The said view is also followed by various judgments of this Court
and also in the reported case of   Vilas @ Bandu Punjabrao Misal,
cited supra.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CRIMINAL APPEAL NO.411 OF 2014.
    Narendra Ramdas Meshram,
     V
     State of Maharashtra,

     CORAM:      B.R.GAVAI AND 
                      V.M.DESHPANDE, JJ.
                                   DATE:     12th JULY, 2016.
Citation: 2017 CRLJ(NOC) 12 Bom



1. The present appeal is directed against the judgment and
order   of   conviction   passed   by   the   learned   Additional   Session
Judge, Bhandara, dated 23rd of May, 2014, in Session Trial No.46
of   2009,   convicting   the   appellants   for   the   offence   punishable
under Section 302 read with Section 34 of the Indian Penal Code
and directed them to suffer imprisonment for life and to pay a fine
of Rs.1000/­ each of them and in default of payment of fine to
suffer further rigorous imprisonment for three months. 
2. During the pendency of the trial itself, original accused
no.3 Sitabai Ramdas Meshram has expired.   A Charge was framed
against   the   appellants   and   deceased   accused   for   the   offence
punishable under Section 498­A read with Section 34 of the Indian
Penal Code and for the offence punishable under Section 302 read
with Section 34 of the Indian Penal Code.   The accused persons
were acquitted of the offence punishable under Section 498­A read

with   Section   34   of   the   Indian   Penal   Code   and   no   appeal   is
preferred against the said acquittal.
3. We have heard Shri R.M.Daga, learned counsel for the
appellants   and   Shri   S.M.Ukey,   the   learned   Additional   Public
Prosecutor for the State.   According to the learned counsel for the
appellants,   the   case   which   is   based   on   Dying   Declaration   of
deceased   Kavita   must   fail   in   view   of   the   authoritative
pronouncement of Hon'ble Apex Court in the case of   Shaikh
Bakshu and ors. ..vs.. State of Maharashtra,  reported in  2007
(11) SCC 269 and also in view of the decision of this  Court in the
case   of  Vilas   @   Bandu   Punjabrao   Misal   ..vs..   State   of
Maharashtra reported in 2016(1) Mh.L.J.(Cri) 493.  
4. Appellant Narendra is the husband of deceased whereas
appellant no.2 Amrut is brother­in­law.   The date of the incident
is 3rd of January, 2009.  Dr.Yogesh Shamrao Nakade (PW 8) was
on C.M.O. duty in General Hospital Bhandara on 3rd of January,
2009.   On the said day, Kavita was admitted in General Hospital,

Bhandara with 75% burn injuries.   Accordingly, he informed the
police by intimation letter vide Exh.48.  
5. Purushottam   Waghmare   (PW   7)   was   attached   to
General Hospital, Bhandara as a A.S.I.     He had been to Kavita
Meshram for recording her statement.     He gave request letter
(Exh.41) to Medical Officer to examine the patient.   According to
this witness, doctor examined and gave certificate and thereafter
he recorded her statement.     The said statement so recorded by
Purushottam Waghmare is at Exh.42.     This statement (Exh.42)
was treated as a First Information Report and was registered the
same   as   such   by   Bhaurao   Chachane   (PW   1),   a   Police   Head
Constable, attached to Lakhani Police Station.   The printed FIR is
at Exh.19.   The said FIR was registered for the offence punishable
under Sections 498­A, 307 read with Section 34 of the Indian
Penal Code vide C.R.No.7 of 2009.
6. PW   6   Bhikanrao   Bibane,   P.S.O.,   Lakhani   took   the

investigation of Crime No.7 of 2009.     He visited the spot and
prepared the spot panchanama (Exh.33).   He also recorded the
statement of parents of the deceased.     He caused arrest of the
accused persons.     Articles scattered on the spot were seized by
him under seizure Panchanama (Exh.34).   Muddemal properties
were sent by him to Chemical Analyzer.     Further investigation
was carried by PW 9 Purushottam Badewale who filed the Chargesheet.
7. The   Dying   Declaration,   which   is   treated   as   First
Information Report is scribed by Purushottam Waghmare (PW 7).
He   gave   request   letter   to   doctor   at   Government   Hospital,
Bhandara   to  examine   the   patient   and   to   give   certificate   as   to
whether she is in a fit condition.     The said letter is at Exh.41.
According to Scribe Purushottam Waghmare, doctor has examined
and put his endorsement on Exh.41 itself that “fit for statement”.
However, the doctor who has examined patient Kavita and who
has   given   aforesaid   endorsement   is   not   examined   by   the

prosecution.
Even   during   the   substantive   evidence,   Purushottam
Waghmare did not state that he himself was satisfied about the
fitness of Kavita.     It is not necessary that for recording Dying
Declaration by the Scribe there should be a Medical Certificate.
However, in such case the person who takes down the statement
of the declarent must himself be satisfied that the patient is in a
condition to  give his or her  statement.     In the  present  case,
neither   Exh.42   shows   the   endorsement   by   Purushottam
Waghmare, a Scribe, that he himself was satisfied about the fitness
of   Kavita   regarding   giving   her   statement   nor   during   his
substantive evidence he has stated so.   In that view of the matter,
the Court cannot rely  on the said Dying Declaration since there is
nothing available on record about the fact that the Kavita was in a
fit condition to give her statement.
8. Another   Dying   Declaration   is   recorded   by   a   Naib
Tahsildar.  He is Nanaji Wasade (PW 4).  On 4th of January, 2009

Police sent letter (Exh.23) requesting the Tahsildar to record the
Dying Declaration of Kavita who is admitted in the Government
Hospital   at   Ward   No.18.       Accordingly,   Shri   Wasade   went   to
hospital.       There,   he   met   Dr.Avinash   Bokade   (PW   5).     He
requested Dr.Bokade to examine Kavita and to certify whether she
is able to give statement.  Dr.Avinash Bokade examined Kavita and
gave certificate (Exh.51) that the patient is in a fit condition to
give statement.   Thereafter, Nanaji Wasade proceeded to record
statement of Kavita who has stated that on the day of the incident
a quarrel took place between her and deceased accused i.e. her
mother­in­law.  Therefore, she went back side of the house and sat
under a Nim tree.   Thereafter, the present appellants came and
they   caught   hold   her   hands   and   her   mother­in­law   (deceased
accused) poured kerosene and set her ablaze.     The said Dying
Declaration is at Exh.24.
The perusal of the Dying Declaration shows that the said
Dying Declaration is absent in respect of the endorsement made by
the Scribe that after recording the Dying Declaration it was read

over   to   the   declarent/Kavita   and   she   admits   it   to   be   true.
Therefore, the said Dying Declaration cannot be relied upon and
cannot be made basis for conviction of the accused persons in view
of the authoritative pronouncement of the Hon'ble Apex Court in
the case of Shaikh Bakshu ..vs.. State of Maharashtra, cited supra.
The said view is also followed by various judgments of this Court
and also in the reported case of   Vilas @ Bandu Punjabrao Misal,
cited supra.
9. The prosecution has also  examined PW 2 Anandabai
Suryawanshi and PW 3 Prabhu Suryawanshi.  They are the parents
of   deceased.       According   to   them,   deceased   made   oral   Dying
Declaration to them.     Evidence of PW 2 Anandabai   that after
disclosing   to   them   by   deceased,   they   came   to   Police   Station
Lakhani on 3rd of January, 2009 itself and filed a complaint against
the accused persons.     On the said aspect, PW 3 Prabhu ­ her
husband, is not corroborating her.   The visit of parents to Police
Station as claimed by PW 2 Anandabai found to be incorrect in

view   of   the   evidence   of   Investigating   Officer   PW   6   Bhikanrao
Bibane, who has stated   in his evidence that on 3rd  of January,
2009   parents   of   deceased   did   not   come   to   the   Police   Station
Lakhani for lodging the complaint.
According   to   these   two   witnesses,   when   oral   Dying
Declaration   was   made,   they   were   accompanying   the   deceased
from village Mundipar to the hospital.   At the hospital itself, there
was a Police Chowky and therefore, they could have disclosed
about   the   oral   Dying   Declaration,   immediately.       Their   police
statements are recorded on 7th of January, 2009.  No explanation
is given for belated recording.  In that view of the matter, it will
really doubtful as to really oral Dying Declaration was made to the
parents by the deceased, as claimed by them.
10. In   view   of   the   aforesaid   discussion,   we   have   no
hesitation   in   our   mind   that   the   appellants   are   required   to   be
acquitted and accordingly we pass the following order. 

­ORDERThe
Criminal Appeal is allowed.
The   conviction   and   sentence   awarded   to   the
appellants/accused for the offence punishable under Section 302
read with Section 34 of the Indian Penal Code vide Judgment and
order   dated   23rd  of   May,   2014   passed   by   Additional   Sessions
Judge, Bhandara in Sessions Trial No.46 of 2009 are quashed and
set aside and the appellants/accused are acquitted of the offence.
The fine amount, if paid, be refunded to the accused.
The appellants are ordered to be released and set at
liberty forthwith if not required in any other case.
JUDGE JUDGE

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